BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has upheld a complaint that an item on Fair Go was unfair to the fencing contractor investigated. The Authority found that the fencing contractor was not treated fairly, due to the way he was set-up to be interviewed (under the guise of calling him to a job) and because he was not given a fair and reasonable opportunity to respond to the allegations made against him in the programme. The Authority also found that the inclusion of information about the contractor’s past which had a criminal element was unfair as it was not relevant to the issues being investigated in this item and contributed to an unfairly negative impression of him. The accuracy complaint was not upheld as the item did not mislead or present inaccurate information, and the balance standard did not apply as the item did not discuss a controversial issue of public importance.

Upheld: Fairness.

Not Upheld: Accuracy, Balance.

Order: Section 16(4) - $750 costs to the Crown

The broadcast

[1]  An episode of Fair Go included an item about fencer, ‘A’, who had appeared on Fair Go on two occasions in the past. The item introduced him as ‘a cowboy tradie who gets paid to build fences but seems to do anything but…’ The presenters also commented that the item was ‘about broken promises, broken hearts, and whether people really can change’. In the opening segment of the item, reporter Anna Burns-Francis commented:

How much do you really know about the work we put in and the people we go after… we’re asking, because sometimes they’ve been here before, for the good, and the bad.

[2]  A number of dissatisfied customers of A were interviewed throughout the item. The segment also included an interview with A, which appeared to be conducted through a set-up, in which the Fair Go team arranged for A to come to a property under the guise of inspecting a fence. Instead, the reporter and a camera operator appeared unannounced, to question him. There were also cameras positioned inside the house and along the fence line.

[3]  A voiceover later in the segment provided viewers with information about his past:

…this is not [his] first rodeo. In 2012, he was done for passport fraud in New Zealand, after being convicted 20 years earlier in Australia on serious drugs charges. And look, mistakes can be made, and people can change. But can [A]? He says he has.

[4]  The Fair Go episode was broadcast on TVNZ 1 on 24 February 2020. In considering this complaint, the members of the Authority have viewed a recording of the broadcast complained about, and have read the correspondence listed in the Appendix.

The complaint

[5]  Sharyn Hilless complained that the programme breached the fairness, accuracy and balance standards of the Free-to-Air Television Code of Broadcasting Practice.¹ Her key concern was that A’s past was brought up unfairly, as it was irrelevant to his current business practices. She argued that he was ‘ambushed’ and not given a proper opportunity to respond to the allegations against him.

[6]  TVNZ did not uphold the complaint, primarily because the information about A’s past was ‘not detailed’ and was ‘relevant to the pattern of behaviour’ being presented. It noted that it had ‘repeatedly’ tried to contact A, and that he engaged with the reporter during the interview and was able to respond to the allegations in that interview.

[7]  More detailed submissions from both the complainant and the broadcaster are outlined in our consideration of the nominated standards below.

The nominated standards

[8]  The fairness standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. People referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that there is no unwarranted harm to their reputation and dignity.² A consideration of what is fair will depend on a range of factors including the nature of the programme and the nature of the individual or organisation featured. Context (such as the public interest in the broadcast) is also important.³

[9]  The accuracy standard states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.⁴

[10]  The balance standard states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Overview of the outcome

[11]  When we come to determine a complaint that broadcasting standards have been breached, we first recognise the important right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This includes the value and public interest in the matters covered in the programme.

[12]  The Fair Go series is concerned with investigating consumer issues and provides an avenue for members of the public to seek redress. The Authority has previously acknowledged that the series generally carries public interest and is of value to the New Zealand public.⁵ In each case we also need to consider the public interest in the relevant item, which on this occasion related to the ongoing conduct of A and the disappointing outcomes for his customers.

[13]  Against this value and public interest, we need to weigh the level of actual or potential harm that may have been caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[14]  The potential harm on this occasion is to the reputation and commercial interests of A arising from the alleged inaccuracies and unfair treatment of him. We have considered the views of the complainant and the broadcaster, and concluded that A was treated unfairly in this instance. The way he was interviewed (through misrepresentation and deception) and the inclusion of information about his past criminal offending was unfair and unnecessary. As a result, we have found that the potential harm in this case outweighed the right to freedom of expression and any public interest in the item. We have therefore upheld the complaint under the fairness standard. Our reasons are expanded below.

Jurisdiction

[15]  Ms Hilless raised a concern with content featured in the programme promo in her referral to the Authority. As this was not raised in her initial complaint to the broadcaster, this aspect of her complaint cannot be considered by the Authority. This is because our jurisdiction is limited to the scope of the original complaint, pursuant to section 8(1B) of the Broadcasting Act 1989.⁶

Fairness

The complaint

[16]  Ms Hilless was concerned about four specific issues of fairness: that A was ‘ambushed’ in the way the interview with him was set up; that his past was raised unfairly; that his wife was unfairly referred to; and that he was not given any right of reply. She provided the following submissions regarding three of these issues:

The interview

• ‘The television presenter had the benefit of a team. [A] had little time to consider answers to the questioning as he was taken by surprise, he was sprung – an absolute set up…another term for this is “ambush”, an unprofessional and bully tactic.’
• ‘[A] had no prior knowledge that this was about to happen and was not given any fair chance to consider questioning by the Fair Go reporter. Most people, when ambushed, would not have an instant recall of events three years prior.’

The references to A’s past

• A’s history is irrelevant to his recent fence-building work. It is from ‘many years ago now’ and ‘bringing up this matter was solely aimed at destroying [his] character…and, perhaps, bringing some sensationalism to the broadcast’.
• ‘[His past] would not be brought up in a criminal court and exposed to the public…to raise someone’s past and to air it on national television is outright scurrilous and has no bearing on building fences.’
• ‘Public humiliation has serious [effects] on the health and wellbeing of the individual, family and friends.’

Opportunity to respond

• ‘There [was] no right of reply for the other side of the story.’
• ‘There is no compassion for family life and the far reaching effect that this is having on immediate family and friends.’
• ‘With regard to [A] not responding, [he] sought advice…[and was advised]…never to respond with Fair Go, don’t reply to emails, hang up if they telephone you, don’t speak to them, have nothing to do with them. This is the reason why he did not respond. We are not all in a position to clear our names through legal means.’

The broadcaster’s response

[17]  TVNZ did not uphold the complaint under the fairness standard, saying:

The interview

• The interview set-up was justified and not unfair to A, given that comment from him could not be obtained in ‘any other way’:⁷
  • ‘[A] was not answering our emails, we had more complaints and we needed to get answers for his disgruntled customers.’
  • ‘Other ways to contact [him] were exhausted; we have repeatedly tried to contact [him] since our last story went to air July in 2019, as the job for [the complainant featured in that story] was not finished. The other customers who approached us have been trying to get answers from [him] for years, as one complainant says he only answered her calls when she changed her phone number.’

Past offending

• ‘We’ve been getting complaints about [A] for many years, the first story we did on him featured a widow whose husband wanted her to have greater security after he died, [A] didn’t complete the job. Once that story had aired, we had more complaints about [A] and his broken promises. We called him a cowboy tradie because with some of his customers he is dishonest and unreliable. At the time, [he] admitted he had let his client down and would do better’.
• ‘We believe the pattern of behaviour from [A] shows he has a history of conducting business in a way that is misleading; and contains a criminal element. Which is why [his] past offending was mentioned.’
• Including this information, ‘which was not detailed’ and ‘which [was] relevant to the pattern of behaviour’ was not unfair.

Reference to A’s wife

• ‘Fair Go did not reference [A’s] wife. Reference was made to a previous Fair Go story which helped [them] with an insurance claim. In that story [A] spoke with and on behalf of his wife and was a willing participant in the story.’

Opportunity to respond

• A did have the opportunity to respond during the interview. ‘As shown in the footage that was aired, we walked at a standard pace and called out his name in advance. Our Reporter introduced herself in full and asked permission to speak to him about the money he owed to clients. [A] could have left, instead our Reporter felt he seemed comfortable to stay and answer questions.’
• ‘With regard to the customers who are happy, [A] made this comment to our reporter, she asked him to supply some names so we could get their comments and balance our story with good and bad customer stories. He said he would ask them, he never got back to us about this, despite emailing him to follow up, no names were offered.’

Our analysis and the outcome

[18]  The key issues with respect to fairness are whether the way in which the interview with A was set up was justified and fair, whether he was given a fair and reasonable opportunity to comment prior to the broadcast, and whether referring to certain aspects of his past was unfair. A’s wife was not referred to in the broadcast, so we do not uphold that aspect of the fairness complaint.

Fair and reasonable opportunity to comment and the interview with A

[19]  There are two core fairness principles relevant to our determination in this case. First, programme participants and contributors must be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.⁸ Second, if a person or organisation portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.⁹

[20]  We accept that the nature of the item had the potential to adversely affect A, given the allegations made by unhappy customers about ongoing issues with his business practices and the other (albeit vague) details provided about his past. The programme focused on his failure to deliver on a number of customer contracts (including after taking deposits), his failure to respond to communications by customers and his failure to deliver on promises to remedy faults. He was described by one customer as a ‘fraud’ and a ‘conman’. The programme also included reference to his past convictions. Accordingly, under guideline 11d, A was entitled to a fair and reasonable opportunity to comment before the broadcast.

[21]  Our understanding of the timeline of events and contact between the broadcaster and A, based on information provided by the broadcaster (and commented on by the complainant), is as follows:

• On 8 July 2019, A was featured in a Fair Go episode investigating a complaint from one of his customers regarding a fence he was supposed to have built. He appeared on the programme via phone calls.
• TVNZ advised the Authority the Fair Go team sent a text to A on 28 June 2019 and two emails on 23 and 31 July 2019 that went unanswered.
• The on-camera interview conducted with A for the 24 February 2020 broadcast took place on 9 February 2020.
• The Fair Go team then emailed A on 11 February 2020 with a series of follow-up questions for him to answer. A did not respond to Fair Go’s email.
• The programme was broadcast 13 days later, on 24 February 2020.

[22]  We note first that the events of June and July 2019 are irrelevant to our consideration of the broadcaster’s efforts to ensure A was treated fairly with respect to the February 2020 broadcast. Those contact attempts related to the 8 July 2019 broadcast and cannot be relied on as offering A an opportunity to comment on the specific allegations featured in a broadcast more than six months later.

[23]  Accordingly, we began by considering the fairness of the interview with A that took place on 9 February 2020, prior to the 24 February broadcast.

[24]  In its response to the complainant’s concerns about the nature of the interview, TVNZ referred to guideline 10e to the fairness standard, which relates to the notion of ‘doorstepping’. ‘Doorstepping’ refers to the filming or recording of an interview or attempted interview with someone, without any prior warning.¹⁰ Doorstepping an individual or representative of an organisation as a means of obtaining comment will normally be unfair, unless all legitimate and reasonable methods of obtaining comment have been exhausted.¹¹

[25]  In this case, we consider the broadcaster’s actions went beyond what is typically understood to be doorstepping, which involves approaching the subject in a public place or at their front door with cameras rolling. Here, the scenario was specifically set up in order to lure A to the location, catch him off-guard, and oblige him to participate in an on-camera interview. A was invited to the property under the pretence that he was to provide a quote to a potential customer. Upon arriving at the property, A was led to the back of the house, after which TVNZ’s reporter appeared with a camera crew. There were multiple cameras set up. Although this did not involve a hidden camera or covert recording device, we think the circumstances were more in line with those proscribed by guideline 11g to the fairness standard which states that broadcasters must not broadcast information obtained by misrepresentation or deception (except where justified by the public interest, which in this case, we consider it was not).

[26]  In our view, the manner in which A was set up was fundamentally unfair. It is also clear from the timeline above, as well as further comments provided by the Fair Go team, that TVNZ did not exhaust all means of obtaining comment from A before he was lured to the interview through misrepresentation. The last contact it had with A was months earlier, in July 2019, in relation to the earlier Fair Go item. TVNZ may have had difficulty engaging with A and obtaining comment from him in the past, and may have believed he would similarly not respond to any contact attempts in relation to the 2020 Fair Go broadcast. However, that does not absolve TVNZ from at least attempting to contact him to offer a fair and reasonable opportunity to respond in respect of any subsequent broadcasts, when required by the fairness standard.

[27]  We therefore do not consider that TVNZ was justified in taking the approach it did and we find A was treated unfairly with respect to the interview. While A engaged for some time with the reporter during the interview, and answered the reporter’s questions, he could not reasonably be expected to give a meaningful response to the matters put to him, on the spot, and with no prior contact regarding this particular broadcast. In the footage that was broadcast, he appeared to maintain a calm demeanour (although TVNZ submitted that this footage was edited and in fact he became very angry and abusive). He was shown apologising to the customers, commenting that he did intend to refund some of them, and explaining he has tried to improve his communication as part of his new business. But the fact he managed to capably answer some of the reporter’s questions as broadcast, does not mitigate the unfairness of the broadcaster’s approach in setting up the covert interview without any prior contact attempts.

[28]  After the interview, the broadcaster emailed A and gave him an opportunity to provide follow-up comments, almost two weeks before the programme went to air. The email was comprehensive, setting out each of the customers discussed in the interview and asking A to comment on each one. On advice, A chose not to respond, which he was entitled to do. But that does not absolve the broadcaster from the requirement to ensure A was treated fairly. Thirteen days passed during which the broadcaster could have again followed up with A. The broadcast ultimately went to air featuring only excerpts of the interview, obtained through misrepresentation.

[29]  In these circumstances we do not consider that the broadcaster satisfied its obligations under the fairness standard or took sufficient steps to ensure the fair treatment of A.

Raising A’s past

[30]  In our discussion of this aspect of the complaint, we could see both sides. The programme was presenting a wide-lens view of A as a person and therefore building a picture of his character. However, we also agreed with Ms Hilless that the criminal element of A’s past has little bearing on his business now as a fencing contractor.

[31]  A consideration of what is fair includes having regard to the context, particularly the level of public interest in the broadcast.¹² Relevant to this case, it also takes into account whether any critical comments were aimed at the participant in their business or professional life, or their personal life.¹³

[32]  Given the limited relevance of the criminal past to the particular complaints of the customers featured, we found that Fair Go could have presented the same picture of A’s character without relying on his past criminal offending. The three customers featured on the programme, and the reference to the previous Fair Go episode were sufficient to illustrate the point – that there was a pattern of behaviour from A in his professional life. The reference to his past offending was not relevant to his professional conduct, given the amount of time that had passed, and was therefore overly personal and unfair and not justified by public interest. It contributed to an unfairly negative impression of him.

[33]  Regarding whether A had a chance to respond to this aspect of the programme, TVNZ advised that ‘…the questions about his past convictions were put to him on camera – we did in fact talk at length with A about his previous criminal behaviour, on tape during the doorstep. He responded at the time so absolutely knew it could be part of the story’. However, we note that this excerpt was not broadcast so it did not mitigate the potential unfairness to him.

Conclusion on fairness

[34]  Overall, we considered the potential harm to A’s reputation and dignity arising from the unfair interview approach, and the broadcaster’s inclusion of information regarding his past offending, outweighed the broadcaster’s right to freedom of expression in this instance. Fundamental fairness principles were not followed in this case, meaning A was not given a reasonable opportunity to defend himself, nor was this justified in the public interest. The story could also have been told factually and fairly without unnecessarily referring to negative aspects of his past which had no bearing on the current complaints against him.

[35]  Therefore we have upheld the complaint under the fairness standard.

Accuracy

[36]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. To ‘mislead’ is to give ‘a wrong idea or impression of the facts’.¹⁴ The second step, if applicable, is to consider whether the broadcaster made reasonable efforts to ensure that the programme was accurate and was not misleading.¹⁵

[37]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.¹⁶

The complaint

[38]  Ms Hilless identified two aspects of the programme that she considered breached the accuracy standard:

• ‘The understanding I have is that the "wobbly" fence was not constructed by this contractor.’
• ‘The matter of [one customer] has been aired previously and did not need to be part of this programme.’

The broadcaster’s response

[39]  TVNZ did not uphold the complaint under the accuracy standard for the following reasons:

• ‘The dispute about [the ‘wobbly’] fence went to the Disputes Tribunal who found that the fence had incorrect post heights, lack of stability, unfinished capping and lack of gate as well as not being made of the material that it was quoted for. The Disputes Tribunal also found overall that the fence failures during installation were of a 'substantial character' under the Consumer Guarantees Act. Fair Go has been provided a copy of this decision.’
• ‘We included [the] past complaint because it never got resolved and because by showing that there is a history of half-finished jobs, we are showing a pattern of behaviour over a period of time.’ A had promised to resolve the past complaint, ‘so we sent a camera to see that new materials had been delivered – we included this in our broadcast’. The way these issues were presented was not misleading.

Our analysis: wobbly fence

[40]  The ‘wobbly fence’ was the first complaint featured in the programme. The customer complainant demonstrated the problems he had with his fence, described his interactions with A, and explained the outcome of his Disputes Tribunal application.

[41]  We do not consider the way in which the programme suggested A was responsible for the wobbly fence was inaccurate or misleading. The customer described his interactions with A, and a Disputes Tribunal decision regarding the fence clearly indicates that the wobbly fence was the fault of A’s business (whether or not another ‘contractor’ or employee of A’s company built the fence rather than A himself). We find no breach of the accuracy standard on this point.

Inclusion of previous Fair Go complainant

[42]  The inclusion of this complainant is not an issue of accuracy, in our view, but rather a matter of editorial discretion for the broadcaster (as well as whether A had a fair chance to respond to that complaint, which is dealt with under the fairness standard above). We do not think it was presented in a misleading way, given the information provided by the customer in the broadcast and by A in response, which enabled viewers to form their own views on that particular complaint.

[43]  Therefore we do not uphold the complaint under the accuracy standard.

Balance

[44]  Ms Hilless complained that the programme lacked balance, as ‘there was no mention of the successful works that have been completed [by A]’ and ‘the broadcast never made reference to any satisfied customers (they do exist).’

[45]  TVNZ responded that the balance standard did not apply as ‘the discussion of several individuals’ problems with a fencer’ is not a controversial issue of public importance. TVNZ also commented that they had given A the opportunity to supply details of the ‘happy’ customers and he did not follow up on this point.

[46]  The balance standard only applies to news, current affairs or factual programmes that discuss controversial issues of public importance. An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.

[47]  In most cases, human interest or personal stories, including personal disputes, will not be considered controversial issues of public importance.¹⁷

[48]  This episode of Fair Go was covering the business practices of a particular fencing contractor. While TVNZ argued it was not of public importance given that it was ‘several individuals’ problems with a fencer’, arguably allegations of questionable business practices could be an issue of public importance. This is consistent with the general premise of Fair Go, which as we have acknowledged above, carries value for the public and consumers.

[49]  However, we consider balancing comment in the sense raised by Ms Hilless with regard to Fair Go is more appropriately dealt with as a question of whether A was given a fair chance to comment, which we have addressed above under the fairness standard.

[50]  For these reasons we do not uphold the complaint under this standard.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Fair Go on 24 February 2020 breached Standard 11 (Fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[51]  Having upheld part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our preliminary findings and on appropriate orders from the complainant and the broadcaster. Given the nature of this case, and as a third party affected by our decision, A was also invited to comment on our preliminary findings.

Submissions

The broadcaster’s submissions

[52]  Responding to our provisional findings, TVNZ and the Fair Go team:

• provided further detail about its attempts to contact A, although these only related to the 2019 programme.
• commented that A was given a right of reply after the interview, and ‘we knew that there was unlikely to be any response forthcoming no matter how often we tried’.
• explained the rationale behind conducting a covert interview and said ‘the decision to do this was taken carefully’. Part of this rationale was that A had not engaged with Fair Go’s team (or with some of the disgruntled customers) after the 2019 programme.
• said, ‘We knew from our past story, and all the complainants who were still contacting A right up to the filming with us for this programme, that he was ignoring everyone – and telling him we wanted to talk again was without a doubt going to get the same response.’
• commented that the footage was edited to show A as calm – he was actually ‘very angry and abused the camera people as he left the property’.
• noted A made no attempt to leave the interview. It ‘ended literally when [the reporter] ran out of questions.
• noted many of the complaints were existing or ongoing (rather than historical) and ‘the complainants were still attempting to contact him’, so it was important for Fair Go to continue investigating the complaints and continue trying to get A’s response.
• said A’s criminal charges are easily searchable on Google.

[53]  On orders, TVNZ submitted that the finding of a breach of standards was regrettable and of concern to Fair Go’s team, and in the circumstances publication of the decision is a sufficient penalty.

The complainant’s submissions

[54]  Ms Hilless provided some detail of the effect of the broadcast on A:

• ‘His mental health has been damaged, his dignity destroyed and his company has had a major “fall off” of jobs resulting in a reduction of staff numbers and a fall off of revenue.’
• ‘He lives in fear of another hit from Fair Go.’
• ‘The cautious nature of [A] and his wife… would not allow them to challenge Fair Go.’

[55]  On orders, Ms Hilless requested the Authority make orders under sections 13(1)(a) (broadcast statement) and 13(1)(d) (privacy compensation – which we note is not available in this case as we have not found any breach of A’s privacy). She also added that she believes ‘the practices of Fair Go need careful examination. Their attitude of bullying and “hunting people down” is destructive to individuals and could easily erupt into physical harm or suicide’.

Response from A

[56]  A did not make any comments on our provisional decision, but in response to TVNZ’s submissions he said:

• He was only contacted in relation to the 2019 programme and once after the interview for the 2020 programme.
• He chose not to respond to the 2020 contact on advice from the Citizen’s Advice Bureau.

Authority’s decision on orders

[57]  In determining whether orders are warranted, the factors we take into consideration are:¹⁸

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

Broadcast statement – section 13(1)(a)

[58]  Considering first the complainant’s request for a broadcast statement, we note such an order is typically made where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused. Taking into account the nature of the programme and the complaint in this case, and the risk that any broadcast statement may draw further attention to the programme and therefore compound the harm to A in terms of the unfair treatment of him, we do not consider a broadcast statement is appropriate in this case.

Costs to the Crown – section 16(4)

[59]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.

[60]  This case centred on fundamental principles of fair treatment that are both clearly set out in the Code and well documented in the Authority’s past decisions. Given Fair Go’s format, its production team should be well aware of what is required to ensure individuals featured on the programme are treated fairly, in particular by giving them a fair and reasonable opportunity to respond to any allegations.

[61]  Despite this, TVNZ has continued to justify the unfair covert interview set-up in this case by relying on earlier contact attempts in relation to the 2019 Fair Go broadcast, and a belief that A was unlikely to respond to any contact attempts in relation to the 2020 broadcast. Neither of these factors absolves the broadcaster from ensuring the Fair Go team at least attempted to contact A to give him an opportunity to comment for the 2020 broadcast, prior to setting up the covert interview.

[62]  Further, as noted by the complainant, the potential impact of the programme on A’s reputation and his business interests was significant.

[63]  Given these aggravating factors, and taking into account past orders in similar fairness cases,¹⁹ we find an order of $750 costs to the Crown is appropriate in this case.

Other actions

[64]  While we do not have the power to undertake a review of Fair Go’s production and practices generally, we consider this decision gives clear guidance to TVNZ and the programme makers about what is required to ensure fair treatment of programme participants, to avoid similar breaches in future.

[65]  We also expect that, as a result of our findings, the relevant Fair Go episode that remains available online will either be removed or edited, or carry a link to this decision for as long as it remains available.

Order

Under section 16(4) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $750 within one month of the date of this decision.

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
16 December 2020

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Sharyn Hilless’ complaint to TVNZ – 1 March 2020

2  TVNZ’s response – 26 March 2020

3  Ms Hilless’ referral to the BSA – 10 April 2020

4  TVNZ’s submissions on the referral – 30 June 2020

5  Ms Hilless’ final comments – 13 July 2020

6  TVNZ’s description of correspondence with A – 3 August 2020

7  TVNZ providing correspondence with A and transcript of interview – 4 August 2020

8  Ms Hilless’ final comments – 9 August 2020

9  TVNZ confirming date of interview with A – 17 August 2020

10  Ms Hilless’ submissions on the Authority’s Provisional Decision and orders – 24 October 2020

11  TVNZ’s submissions on the Authority’s Provisional Decision and orders –
30 October 2020

12  A’s response to Authority’s invitation to comment on Provisional Decision – 9 November 2020

13  Ms Hilless’ final comments – 15 November 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Guideline 11a
⁴ Commentary: Accuracy, as above, page 18
⁵ See, for example, EJ, Oughton & Gulf Harbour Healthcare Ltd and Television New Zealand Ltd, Decision No. 2019-035 at [21], and Atkins and Television New Zealand Ltd, Decision No. 2016-056 at [5].
⁶ See, for example, Drinnan and MediaWorks TV Ltd, Decision No. 2020-100 at [14]
⁷ Referring to guideline 11e which states that doorstepping an individual (defined as the filming or recording of an interview or attempted interview with someone, without any prior warning) will normally be unfair unless all legitimate and reasonable methods of obtaining comment have been exhausted.
⁸ Guideline 11b
⁹ Guideline 11c
¹⁰ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
¹¹ Guideline 11e
¹² Guideline 11a
¹³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁴ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
¹⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁶ Guideline 9b
¹⁷ See, for example, Brereton & Riches and MediaWorks TV, Decision No 2019-097 at [49]
¹⁸ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
¹⁹ For example, Harvey & Lorck and MediaWorks TV Ltd, Decision No. 2018-036, and Taimoori and 5Tunz Communications Ltd (Humm FM), Decision No. 2019-019